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Procedure:

In accordance with Section 13 of the Industrial Relations Acts 1969, following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.

Background:

This is a case where the claimant sought an appeal on a Disciplinary Sanction in relation to a grievance under Dignity at Work. The claim was opposed by the Employer. The Claimant was represented by Ms Deirdre Canty , SIPTU and the Employer was represented by Cian Beecher, Solicitor at Arthur Cox. Both Representatives presented written and oral submissions which I found of great benefit .

Summary of Claimant’s Case:

The Claimant commenced employment as a Deputy Bank Manager in 2012 and was promoted to Bank Manager in May 2015.The Union outlined a background to the case where the claimant was seeking that two Disciplinary sanctions of 27 October 2017 date be appealed and removed from her file. She sought a right of return to her Suburban based Hub Manager role and saw this as an opportunity to clear her name. The Claimant has been on sick leave since 28 October 2017 and is currently awaiting surgery.

By way of background, the Claimant herself described her own high-level commitment to her position of bank Manager. She also described a poor physical infra structure which in turn challenged this commitment and placed her in a perpetual pressure zone. The Union outlined that the claimant approached the circumstances of the case as a high achiever and was well regarded by staff.

On 29 August ,2017, on return from her holidays, the claimant was notified of a complaint, comprising 21 separate incidents in accordance with the Company Dignity at Work Policy which had been lodged against her by a branch colleague.

An Investigation followed and reported on 25 September 2017. Five out of the 21 complaints were upheld.

The Claimant then appealed the findings of the Investigation report.

The Union submitted that the claimant was subsequently the subject of a 3-month verbal warning and removal from her position to that of a Business Development role, Workplace Banking Manager, she was not permitted representation at this meeting. The change of role was to be effective from 31 October 2017. On November 10,2017 The Claimant appealed this decision.

The Appeal was conducted by paper submission and confirmed that the Appeal had been upheld on 7 December 2017.

“Having carefully considered your appeal, all materials available to me and considering your representations, I have reached the decision to uphold your appeal. This decision has been taken because of the breakdown in internal procedures during the process, specifically the omission to advise you of your entitlement to be accompanied at the meeting of October 27 ….

However, I note the findings x3 against you as follows set out in the Investigation Report.

The Appeals Manager ordered that a Senior manager should review the Investigation Report to assess if any disciplinary sanction was required. He confirmed that the claimants base would continue unaltered as city centre. The claimant was invited to attend a Disciplinary Hearing meeting on 14 December 2017, subsequently deferred to April 11th, 2018 with provision for Trade Union representation. In the meantime, the claimant had attended Occupational Health Review and was deemed fit to participate in the process.

On May 2,2018, Mr C, as designated appeal decision maker upheld the outcome of the Disciplinary process, but acknowledged that the 3-month verbal warning had expired and the question of the claimant’s role was moot and she was requested to engage with Management.

The Union sought to be present at the next engagement, but on 14 May was denied participation on the grounds of the matter being an operational matter. The Complainant attended alone and was again informed that she was being moved to another role which did not have people management responsibility.

The Union contended that the claimant had been denied fair procedures throughout the entire investigation a disciplinary procedure. She was denied representation.18 of the 21 allegations were found to be “not upheld” and were exaggerated and fabricated. The Claimant contended that the remaining three episodes arose from a demonstration of legitimate management authority only and not bullying behaviour.

The Union outlined that the Claimants Manager served as both a witness to the investigation and a member on the Disciplinary Hearing. The Claimant submitted that he had agreed to accompany her at the October 27 meeting only for her to discover that he was seated on the decision-making part of the table. The Primary Report recommended that the complainant should equally be addressed on her behaviour, yet no feedback followed on this.

The Union argued that the Claimant was unjustly removed from her position and this proposal was miscast as operational to exclude the Union participation. The revised proposal of work was coupled with an extensive driving regime which would conflict with the claimant’s vulnerable back condition. At the time of hearing, she was awaiting back surgery. The Claimant has been refused a return to her previous job.

The Union sought a favourable recommendation aimed at securing a return to the role of suburban Hub Manager for the claimant as an equitable resolution for the wrong she had experienced since August 2017.

Summary of Employer’s Case:

The Solicitor for the Employer outlined that the Company has participated in Banking business in Ireland since 1973 and currently employs 1100 employees.

The Employer raised a concern that the claim of appeal of Disciplinary sanction was in fact moot given that the verbal warning had already expired.

The Solicitor for the Employer outlined that 21 allegations of bullying had been lodged against the claimant by a colleague in August 2017.These referred to various dates between March 2016 an August 2017.

The matter was investigated under the Company Dignity at Work Policy and was accompanied by agreed Terms of Reference. The findings on 25 September 2017 concluded that 5 of the complaints were upheld. The Employer contended that these were reasonable conclusions having regard for the terms of the complaint and the evidence adduced.

The Employer received an undated letter of appeal and synopsis of rejection of findings from the claimant on 18 October. A Disciplinary Hearing followed and a “lower end” verbal warning was applied to the claimant.

The Disciplinary procedure which followed adhered to the Company Disciplinary Policy. The Employer wrote to the claimant, confirmed the verbal warning of 3 months duration and a notification that her role was to change from a Unit Manager to a new position in an alternative location. The role did not involve people management duties and would be supported by the same Line Manager. The letter stated:

….. The reason for the move was to support her development in assuming a role that specialises in business development

The Employer received an appeal of this decision by means of a 10 November later dated as 10 October. The Claimant highlighted that she had not been permitted a representative on 27 October. She also claimed that she had already made a conciliatory offer to explore other solutions. The claimant alleged that the company had changed her computer password. This was groundless.

The Company appointed Mr B (service lead) to complete the appeal. The appeal was held on 23 November and focussed on the extracurricular nature of the proposed role change which had not, the claimant claimed been mentioned as part of the earlier disciplinary meeting. The Claimant stated that she first heard the news from a colleague.

On December 7, 2017, Mr B upheld the appeal and recommended that the sanction be overturned, but acknowledged that three incidents of bullying were upheld. He recommended that a Senior Manager should review the case to ascertain if disciplinary action should follow.

The Company decided to return to a Disciplinary hearing which had a delayed start due to the claimant’s desire for representation by her Union and the claimants enduring absence due to illness. The Claimant was deemed fit to participate in the proves on 11 April, 2018.A full engagement followed.

On 2 May 2018, Mr C confirmed that the three incidents of bullying were upheld and the three-month verbal warning should remain on her file as the appropriate disciplinary sanction. He did not make a direction or determination about the claimant’s role and she was requesting to liaise with the Management Team.

The Company arranged to meet with the claimant on an operational basis without a commensurate need for Union Representation. This meeting went ahead on 23 May, where the Employer sought to broaden the discussion into Mortgage Specialty role and an amended Workplace Banking role with limited travel radius bit the claimant was only interested in a return to her former position. As the claimants continued sick leave and was not yet fit to return to work, no agreement was reached on a return role. the claimant has been maintained on an enhanced sick pay arrangement The Employer was notified of the WRC interest in the case one month later.

The Employer stood over the prompt, fair and impartial investigation conducted into the complaints under the Dignity, Respect at Work Policy, where both the rights of complainant and respondent were respected and up held. A fair Disciplinary process followed and yielded a finding of p [procedural irregularities which did not compromise the standing of three incidents of bullying which remained undisturbed. The Company awaited the claimant’s medical clearance before commencing a follow on in hearing in May 2018.

Mr C did not address the claimant’s role but re-affirmed the three-month verbal warning. The Company representative concluded that the claimant had received a sole sanction of verbal warning. The sanction was viewed as reasonable and proportionate. The company disputed that there was more than one sanction in the case and sought that case be dismissed.

The Company representative pointed to a mobility clause in the claimants contract which permitted relocation and in offering the claimant a new role, the Employer planned to exercise its contractual right under clause 4.2 of the contract of employment .The Employer is seeking to agree a changed role having regard for the claimants qualifications, experience and health status .Reasonable Accommodation will be offered and promoted .The Employer is keen to meet with the claimant once she is deemed fit to participate in productive discussions . The Employer submitted that a locum currently fills the claimant’s role.

The Employer concluded by seeking that the case be dismissed

Findings and Conclusions:

I have listened very carefully to both parties in this case and I have considered the documents submitted particularly in the case of the grievance lodged under the Dignity at Work Policy in August 2017. I have also considered the claimants contract of employment, the protections permitted in Clause 4.2.

At the outset, I would like to record that this case has evolved into a procedural traffic jam. I have not met with the complainant in the case in relation to the Dignity at Work concerns, but I have extensive concerns on how this complaint emerged in the formalised version in the first instance and escalated to a formal procedure, thus by passing an extensive range of alternatives open to the parties. I could not determine any efforts made by the employer to engage with the alternatives such as:

Support Contact Person intervention with the alleged perpetrator

Or

Mediation

I could not establish any grounds as to why the informal procedures were by passed. I noted serious shortfalls in terms of the Initial Investigation of a complaint as provided for in the Dignity AT Work Policy. There was no visible sign that the complaint had been screened for alternatives to the formal procedure.

Instead, in considering the letter of complaint dated 14 August, I was struck by the undue haste associated with the management of the complaint. It was accepted by the parties that the claimant in this case received notification of the complaint on her return from leave on August 28 with a request to agree Terms of Reference governing an Investigation by 31 August.

This is the period where access to representation should have been explored by the claimant. I was uneasy with the wording of the 14 August complaint as it appeared in hybrid fashion referencing both the grievance and Dignity at Work Policy. I felt it amounted to a major omission on the Employers behalf that clarification was not attempted on which of the separate and distinct policies was actioned by the complainant at that time?

What followed afterwards is disputed by the parties. The Investigation report was challenged by the complainant in an undated document, yet I could not find any reportage or progression of this. I note that the claimant attended an Outcome Meeting as provided for in the Dignity at Work Policy but this somehow ended in an application of a Disciplinary sanction and notification of a job change.

The Dignity at Work Policy delineates an outcome meeting as a procedural next step on publication of the report. It outlines that many options are available, such as Counselling, monitoring short of Disciplinary action. Yet, again, none of these appear to have been attempted and somehow an outcome meeting was blended with a Disciplinary Hearing.I found this to be a misinterpretation of the Policy.

I note that the Employer provides for Representation by a work colleague in this case. This is at variance with SI 146/2000 and not sufficiently robust for the circumstances complained of where a Senior Manager conflicts with an employee.

I did seek to illicit from the Employer just how the first step in the process was decided on, but I did not receive a satisfactory answer. I was struck by the lack of any visible consideration of the minority outcome report and the specific recommendation that the behaviour complained of was low end.

However, I found that the Employer made a cardinal error in seeking to remove the claimant from her Managers position. This was set out in the outcome letter of 27 October and confirmed that people management responsibility was being removed from 31 October 2017. This was followed by the claimant’s sick leave which stands uninterrupted to date of hearing.

I cannot accept the Employer contention that the role revision was extracurricular to the August 14 complaint. If that was so why would it have found its way to the outcome letter? This action had prompted a deep chasm between the parties, which has prevented any healing or closure in the case.

I found that the chasm was fore-most in the claimants mind as she evalauated the benefit of having worked hard in a tight space, her high level of commitment against her perceived exclusion from the workplace. This has not been assisted by the claimant’s absence through sick leave. I note the announcement of the claimant’s appointment to a revised posting on November 2, 2017. This move lacked sensitivity and fell short of best practice.

I have considered the appeal of the Disciplinary sanction and found the process so flawed and void of fair procedures that it is not necessary to go further in this matter. The Claimants appeal was upheld yet this prompted the Employer to re run the Disciplinary hearing, once again not taking time to consider alternative options. In the words of Justice O Donnell in Ruffley V Board of Management, St Ann’s School, 2017 {IESC} 33, this demonstrated

“a lamentable failure to re-think “.

The unfortunate legacy of these procedural variations has resulted in a complete severing in the employment relationship between the parties and given the claimants high level description of the Ostracism she believes that she has experienced, it is very difficult to assess the best course of action in the case.

I find that the Disciplinary Sanction of a verbal written warning to be wrongly applied. I find the Disciplinary Sanction of Role revision and relocation to be wrongly decided and grossly unfair and may if not addressed collectively in the immediacy, may lead to more serious challenge.

I am struck by the inconsistency in the Employers reliance on Occupational Health Referrals. The Company clearly intended to re-locate the claimant in this case without her agreement. The Company commissioned an Occupational Health Report to satisfy the claimants fitness to participate in the re convened Disciplinary hearing in May 2018 yet did not reciprocate this action when faced with the claimant’s notification of illness in late October 2017.

However, I note and was very encouraged by the Employer openness to scoping out a resolution in the case. I was struck by the empathy displayed towards the claimant tempered by a clear reservation in the face of the claimant sole stated proposal for resolution, that of a return to her suburban position. I note that the Company is prepared to scope out a number of potential resolutions .

I have found considerable merit in this Dispute.

Before I move to a recommendation in this case, I think that it is important that I set out a very valid extract from Charlton J in Ruffley for the party’s attention and consideration.

Ruffley V Board of Management, St Ann’s School, 2017 {IESC} 33

The test requires all the elements to be fulfilled. It should be considered sequentially. It is objective. Not subjective. It cannot be right to formulate liability on the basis of how people see the conduct of their colleagues in the workplace, but instead only on the basis of how that conduct would be objectively viewed; see Glynn v Minister for Justice, Equality and Law Reform & OR’s [2014] IEHC 133 at paragraph 54. An employer is entitled to expect ordinary robustness from its employees; Croft v Broadstairs and St Peter’s Town Council [2003] EWCA Civ 676. Correction and instruction are necessary in the functioning of any workplace and these are required to avoid accidents and to ensure that productive work is engaged in. It may be necessary to point to faults. It may be necessary to bring home a point by requesting engagement in an unusual task or longer or unsocial hours. It is a kindness to attempt to instil a work ethic or to save a job or a career by an early intervention. Bullying is not about being tough on employees. Appropriate interventions may not be pleasant and must simply be taken in the right spirit. Sometimes a disciplinary intervention may be necessary. In Yapp v Foreign and Commonwealth Office [2014] EWCA Civ 1512, the Court of Appeal in England and Wales considered a disciplinary procedure which was alleged to have resulted in the plaintiff suffering from depression. Underhill LJ noted at paragraph104:-

It is a normal characteristic of the employment relationship that employees may be criticised by the employer and sometimes face disciplinary action or other such procedures. And in an imperfect world it is not uncommon for such criticism or disciplinary process to be flawed to some extent: there will be a spectrum from minor procedural flaws to gross unfairness. The message of Croft is that it is not usually foreseeable that even disciplinary action which is quite seriously unfair will lead the employee to develop a psychiatric illness unless there are signs of pre-existing vulnerability.

While I have found merit in the Dispute, I also find that both parties must carry and address the challenge of the claimants requested return to work post illness.

I note that time has passed and the Suburban role has been filled on a locum basis during the claimant’s absence. It is the Employers stated wish that the Claimant engage in an exploration of other possibilities of return. I accept that the claimant sees a return to her post as an equitable resolution to be seen by others as clearing her name. I would ask the Union and the claimant to reflect on this as its validity may have been overtaken by time.

Recommendation:

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.

I have found considerable merit in the Dispute.

I have recommended that both sanctions contained and mentioned in the Disciplinary process stand appealed and any records such be removed from the claimants file.

I recommend that the Employer review the Dignity at Work Policy to re-emphasise the importance of early informal intervention in cases of alleged Bullying and that a Roadmap for Complainant and Respondent is clearly delineated with provision of a Representative of choice with relevant experience.

I recommend that once the claimant is deemed fit for return to work that the parties engage in an agreed Independent Facilitation supported by Occupational Health and Union expertise to identify a return to work for the claimant within four weeks of that notification.

I realise that it would be fair, reasonable and equitable for the claimant to return to her Primary Suburban position and that may well be the agreed outcome.

However, I recommend that the claimant broaden her range of possible resolutions as informed by her Advisors. I do not think that I can venture any further into the company operations. It is a matter for the parties themselves to agree when the time is right. It may also be of benefit to agree an appropriate support mechanism to underpin the return to work for both parties with identifiable review junctures .

In the meantime, I recommend that the Claimant be maintained on full pay and pension until she returns to work.

I make these recommendations in the interest of both parties moving forward in the case in their best interest .